assignment deed of goodwill

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  Deed of Assignment of Business with Goodwill and Immovable Property

THIS DEED OF ASSIGNMENT made at ___________ this ____ day of ____________ 200___ between ABC Ltd, a Public Limited Company incorporated under the Indian Companies Act, 1956 having its Registered Office at _______________________________________  ____________________________________________ hereinafter called ‘The Assignor’ (which expression shall unless repugnant to the context or meaning thereof be deemed to include its successors) of the One Part; and XYZ Ltd., a Public Limited Company incorporated under the Companies Act, 1956, having its Registered Office at __________________________ hereinafter called ‘The Assignee’ (which expression shall unless repugnant to the context or meaning thereof be deemed to include its successors and Assigns) of the Other Part.

WHEREAS:—

(a) The Assignor carries on its business of manufacture and sale of pharmaceuticals and chemicals in the name and style of “TOP PHARMA AND CHEMICALS” being one of its Division and has its factory premises at Village _________, Taluka __________, Dist. _____________ (hereinafter referred to as “the said Top Pharma & Chemicals Division” ).

(b) The Assignor is seized and possessed of or otherwise well and sufficiently entitled to the immovable property at Village _________, Taluka _________, District ___________ and more particularly described in the SCHEDULE hereunder written (hereinafter referred to as “the said property” ) and on which property the Assignor has constructed it’s factory premises of the said Top Pharma and Chemicals Division.

(c) The Assignor is also possessed of plant, machinery, equipment and tools etc. (hereinafter collectively referred to as “the said plant and machinery”) in its said factory and is running the said factory and the business with all necessary licenses.

(d) The Assignee is also in the business of manufacture of pharmaceuticals and other products;

(e) Under the Memorandum of Understanding dated _________ day of __________ 201__, the Assignor has agreed to sell and assign and the Assignee has agreed to purchase from the Assignor, free from all encumbrances, as a going concern, the said business of “TOP PHARMA AND CHEMICALS” division along with its immovable and movable assets including the said name along with its goodwill as incidental to the assignment of the said business for the consideration and upon the terms recorded herein.

(f) By a Resolution dated ______________ of its Board of Directors, the Assignor has resolved to assign its said Top Pharma & Chemicals Division along with its name and goodwill together with its immovable and movable assets pertaining to the said Division to the Assignee upon the terms and conditions herein contained.

(g) By a Resolution dated ___________ of its Board of Directors, the Assignee has resolved to purchase the said Division of the Assignor, as a going concern, along with its name and goodwill and together with its immovable property and movable assets upon the terms and conditions herein contained.

(h) The parties are desirous of recording the terms and conditions agreed between them as appearing hereinafter.

NOW THIS DEED OF ASSIGNMENT WITNESSETH and it is hereby mutually agreed by and between the parties hereto as follows:

1. The Assignor hereby sells, transfers and conveys absolutely and the Assignee hereby purchases, free from all encumbrances and reasonable doubts, all and singular the Assignor’s said “Top Pharma and Chemicals Division” as a going concern with effect from _______________ (hereinafter referred to as ‘the Effective Date’ ) along with its business, goodwill, name, trade name, rights and assets listed below (hereinafter referred to as “the said business” ):

(a) the freehold land admeasuring approximately _________ together with the constructed building thereon admeasuring _______ sq. mtrs. and more particularly described in the SCHEDULE hereunder written and hereinafter referred to as ‘ the said immovable property’ together with water drawing rights, electric power connections including cable connections from Maharashtra State Electricity Board Sub-Station to the said immovable property and the factory premises and all other rights directly and/or indirectly attached and available to the said immovable property;

(b) all fixed and loose plant and machinery and tools and all furniture (fixed or loose), fixtures, fittings, laboratory instruments/equipment, spare parts, dies, and all connected accessories thereof;

(c) all current Assets of the said business;

(d) the Assignor’s goodwill of the said Division and the right to represent the Assignee as carrying on/continuing in business in succession to the Assignor’s said Division and to use the name of the said Division, as of the Assignee’s Division;

(e) the full benefits of all patents, trade marks designs, discoveries, inventions, secret processes, licenses, approvals etc. thereof;

(f) all policies of insurance in respect of assets and business of the said Division; and

(g) the net current assets namely existing stocks, raw materials, finished and unfinished products, material in process, stores, packing material etc.

2. On and from the effective date, all the aforesaid assets of the said business of the Assignor is vested absolutely in the Assignee as full owner thereof and from the said effective date, the operations of the said business is to the account of the Assignee as sole owner thereof. The Assignor is executing the present Deed of Assignment in favor of the Assignee for effectively vesting the said assets in it as owner thereof, the Assignee having the full benefits thereof pursuant to Assignment hereunder.

3. The total consideration for the sale of the said business of TOP PHARMA AND CHEMICALS Division together with all its assets by the Assignor to the Assignee is Rs. _______________ (Rupees _______________________ Only) and the payment of the said consideration has been paid by the Assignee on or before the execution hereof.

4. The parties covenant that:—

(a) It shall be the sole obligation of the Assignor to pay, and discharge all the outstanding debts and liabilities of the said business as on the effective date.

(b) On and from the effective date, it shall be the sole obligation of the Assignee to meet all the debts and liabilities of the said business. 

(c) If required, the liabilities which cannot be separated as on the effective date relating to the said business shall be apportioned between the parties.

5. The Assignee is taking over the services pertaining to the said business of all the existing employees and workmen as from the effective date on their existing remuneration and the terms and conditions governing their services and as from the effective date by operation of law as also by virtue of this deed all such employees of the said business shall be deemed to be the employees of the Assignee. However, all the liabilities of the said employees including provident fund, gratuity, pension, leave allowance, etc. till the effective date shall be on account of the Assignor. 

6. The Assignee is entitled to get all the business licenses/statutory approvals of the said business transferred in its own name.

7. In consideration aforesaid the Assignor doth hereby grant, convey, transfer and assure unto the Assignee ALL THAT piece or parcel of land together with structures standing thereon and more particularly described in the SCHEDULE hereunder written (herein referred as “the said property ”) TOGETHER WITH all and singular the houses, out-houses, edifices, buildings, court, yards, areas, compounds, sewers, drains, ditches, fences, trees, plants, shrubs, ways, pathas, passage, commons gullies, wells, waters, water-courses, lights, liberties, privileges, easements, profits, advantages, rights, members and appurtenances whatsoever to the said property or any part thereof belonging or in any wise appertaining to or with the same or any part thereof now or at or any time heretofore usually held, used, occupied or enjoyed or reputed or known as part or member thereof and to belong or be appurtenant thereto AND ALL THE ESTATE right, title, interest, claim and demand whatsoever at law and in equity of the Assignor in to out of or upon the said property or any part thereof TO HAVE AND TO HOLD all and singular the said property hereby granted, conveyed, transferred and assured or intended or expressed so to be with their and every of their rights, members and appurtenances (all which are hereinafter called “the said premises” ) UNTO AND TO THE USE and benefit of the Assignee for ever AND THAT it shall be lawful for the Assignee from time to time and at all times hereafter peaceably and quietly to hold under upon occupy, possess and enjoy the said premises hereby granted, conveyed, transferred and assured with their appurtenances and receive the rents, issues and profit thereof and of every part thereof to and for its own use and benefit without any suit, lawful eviction, interruption, claim and demand whatsoever from or by the Assignor or its successors and assigns or any of them from or by any person lawfully or equitably claiming or to claim by from under or in trust for them or any of them AND THAT free and clear and freely and clearly and absolutely acquired, exonerated, released and for ever discharged or otherwise by the Assignor well and sufficiently saved, defended, kept harmless and indemnified of from and against all former and other estates, title, charges and encumbrances whatsoever either already or hereafter had made, executed, occasioned or suffered by the Assignor or by any other person or persons lawfully or equitably claiming or to claim by from under or in trust for them AND FURTHER that the Assignor shall and will from time to time and at all times hereafter at the request and cost of the Assignee do and execute or cause to be done and executed all such further and other lawful and reasonable acts, deeds, matters, things, conveyances and assurances in law whatsoever for the better further and more perfectly and absolutely granting unto and to the use of the Assignee in manner aforesaid as shall or may be reasonably required by the Assignee its successors or assigns or its or their Counsel in law for assuring the said premises and every part thereof hereby granted, conveyed, transferred, and assured unto and to the use of the Assignee in manner aforesaid. 

8. Pursuant to the aforesaid, the Assignor doth hereby agree to indemnify and keep indemnified the Assignee and its successors against all loss, charges, costs and expenses it may incur or suffer on account of Assignor’s liability of the said business prior to the effective date.

9. The Assignor declares and has represented to the Assignee that:-

(a) the Assignor is the sole and absolute owner of the said business as also of immovable and movable properties thereof referred to above and has absolute and sole right to hold, use, occupy and possess the same.

(b) the said property, the said business and all its assets are free from all claims and encumbrances and reasonable doubts of any nature whatsoever and the same are not attached either before or after judgment or at the instance of any taxation authority or any other authorities and the Assignor has not given any undertakings to the taxation authorities or any authorities so as not to deal with or dispose of the right, title and interest in the said property/business.

(c) the Assignor has not entered into any arrangement, agreement or commitment in respect of the said property/business nor created any third party rights for the same or any part thereof.

(d) For effectively transferring the said business and its’ assets in terms of this Deed of Assignment, the Assignor shall at all material times, as may be reasonably required by the Assignee, execute all necessary writings, deeds, declarations etc. at the cost of the Assignee.

10. All the cost of transfer including Stamp Duty, Registration Charges, and Sales Tax (if any) shall be borne and paid by the Assignee alone. Each party shall separately pay their advocates/solicitors professional charges.

11. The Assignor shall have the provision and the terms and conditions of the present Deed of Assignment accepted at its next Annual General Meeting. However, the provision of this Clause shall in no way affect the rights of the Assignee derived under the present Deed of Assignment.

12. The Parties hereto shall comply with all the provisions of the Company Law and other applicable laws to the transaction.

13. In the event of any dispute arising between the parties hereto and which cannot be mutually resolved within a reasonable time; the same shall be referred to the Arbitration under the provisions of The Arbitration and Conciliation Act, 1996 or any other prevailing Arbitration law. The Arbitration shall be held in the city of ______________.

14. The Courts at ______________ alone shall have jurisdiction to try and entertain all disputes between the parties hereto.

THE SCHEDULE ABOVE REFERRED TO

(Give detailed description of the properties including structures)

IN WITNESS WHEREOF the parties hereto have executed these presents and a duplicate thereof the day and year first hereinabove written.

The COMMON SEAL of the within named )

ABC LIMITED was hereunto affixed )

pursuant to the Resolution of its )

Board of Directors passed in that )

behalf on the ___ day of ____ 200___, )

in the presence of ________________ )

Director and in the presence of _____________ )

_____________, the secretary of the company )

and in the presence of )

THE COMMON SEAL of the within named )

Assignees XYZ LIMITED was hereunto )

affixed pursuant to the Resolution )

of their Board of Directors )

passed in that behalf, on the )

______ day of _________ 200__ in the )

presence of (1) _____________________, )

Managing Director and (2)____________ )

Director and in the presence of _________ )

RECEIVED the day and year first hereinabove written of and from the within named Assignee an aggregate sum of Rs. ________________/- (Rupees _________________ Only) as within mentioned being the full and final consideration as under:—

WE SAY RECEIVED ABC LIMITED

DIRECTOR (ASSIGNOR)

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Legal Documents

Deed of Assignment of Trademark (Absolute without Goodwill)

This is an agreement between an owner of a Trademark (Assignor ) and an interested party (Assignee), wherein the Assignor intends to transfer the rights, titles and interests in the Trademark to the Assignee in accordance with the conditions  negotiated between parties.

This Deed gives the assignee the legal right to use the trademark of the owner.

It is obtainable when there is an intention to assign absolute rights. However, the Assignor still retains the goodwill of the business.

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• Deeds & Drafts / ASSIGNMENT-OF-A-GOODWILL-BUSINESS

ASSIGNMENT OF A GOODWILL BUSINESS

This Deed of Assignment being executed on this ___________ day of _________. Between Sh. _________, S/o Sh. __________, R/o ____________ (as named "the assignor") which expression shall include his successors, executors and administrators on the one part And Sh. _________, S/o Sh. ___________, R/o _____________ (as named "the assignee") which expression shall include his successors, executors and administrators of the other part. Whereas 1. The assignor is in the trade of manufacturing cloth and so, for the past 32 years. 2. The assignor has by way of the said trade earned goodwill and established a good reputation. The assignor has trade connections with several other firms/persons. 3. The assets liabilities of the said trade are stated in Annexure I enclosed herein. 4. The assignee has for a sum of Rs. ______, consented in taking the trade of the assignor as a running business with its goodwill, liabilities and remaining. Now This Deed Witnesses as Follows: 1. That according the said covenant and in lieu of the sum of Rs.__________ (Rupees ______________only) paid to the assignor (whose receipt is hereby acknowledges) assignor beneficial owner hereby assigns as follow to the assignee— (i) the goodwill trade; (ii) all debts and outstanding stated in the schedule unclose and also other sums as are or may be found due to assignor concerning the trade; (iii) all rights, privileges, benefits, emerging out all pending contractual engagement. (iv) Business -mark in concerning said trade; (v) stock-in-business furniture, fixtures of the trade; The assignee shall take over the said trade completely. The assignor bearing no right /interest of any form as left in the same. 2. The assignor also agrees and guarantees the assignee that help the assistance in claiming and realizing/ getting the debts remaining of the trade. assignor shall also at all period clarify, any item in account books, for claiming any legal claim , concerning the said debts /outstanding. 3. The assignee also consents that for paying and discharging all debts, liabilities and outstanding of the said trade till this day shall, at all times, keep indemnified the assignor /his estate and effects from and against all hearing, costs, claims, expenses/liabilities, whatsoever, relating thereof. In Witness Whereof, the parties to this deed have signed at (Name of place), on day, month and year first above noted, in presence of :

Assignor ___________ Assignee: ____________ Signed ................. Date ................ Witnesses: 1. 2.

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Assignment of Goodwill (Deed): A Comprehensive Guide

• Ayodeji Akingbade
• February 25, 2024
• Land , Law and Regulations

Table of Contents

When it comes to business transactions, the assignment of goodwill is a critical aspect that should not be overlooked. Goodwill refers to the intangible value associated with a business, such as its reputation, customer relationships, and brand recognition. Assigning goodwill through a deed allows for the transfer of these intangible assets from one party to another. In this comprehensive guide, we will delve into the concept of assigning goodwill, the process involved, its legal implications, and the importance of conducting due diligence before entering into such agreements.

Understanding Goodwill and its Importance

Goodwill is a vital component of any business, representing the intangible assets that contribute to its overall value. It encompasses factors such as customer loyalty, brand reputation, intellectual property, and favorable supplier relationships. Goodwill plays a significant role in attracting customers, generating revenue, and maintaining a competitive advantage in the market.

Assignment of Goodwill: An Overview

The assignment of goodwill involves transferring the ownership rights of intangible assets from one entity to another. This transfer is typically carried out through a legal document known as a deed. The deed outlines the terms and conditions of the transfer, including the consideration exchanged, rights and obligations of the parties involved, and any restrictions or limitations on the use of the transferred goodwill.

Components of the Assignment Deed

An assignment deed for goodwill typically includes the following components:

1. Parties : The deed identifies the parties involved in the assignment, namely the assignor (the party transferring the goodwill) and the assignee (the party receiving the goodwill).

2. Consideration : The assignment deed specifies the consideration exchanged between the parties. This can be in the form of monetary payment, non-monetary assets, or a combination of both.

3. Rights and Obligations : The deed clearly outlines the rights and obligations of both the assignor and the assignee. It may include provisions related to the use of the transferred goodwill, non-compete clauses, and any ongoing obligations of the assignor.

4. Restrictions and Limitations : The assignment deed may include restrictions and limitations on the use of the transferred goodwill. This can include geographical restrictions, limitations on the type of business activities the assignee can undertake, or any other specific conditions agreed upon by the parties.

5. Termination : The deed may also include provisions for termination, specifying the circumstances under which the assignment can be terminated and the consequences of termination.

Legal Implications and Considerations

Assigning goodwill through a deed has legal implications that should be carefully considered. Here are some key legal aspects to keep in mind:

Contractual Obligations

The assignment of goodwill is a contractual agreement between the assignor and the assignee. Both parties are legally bound by the terms and conditions outlined in the assignment deed. Therefore, it is crucial to ensure that the deed is drafted accurately and comprehensively to avoid any misunderstandings or disputes in the future.

Intellectual Property Rights

Goodwill often includes intellectual property rights, such as trademarks, copyrights, or patents. When assigning goodwill, it is essential to verify that the assignor has the legal right to transfer these intellectual property rights. Conducting a thorough intellectual property search and clearance process can help identify any potential conflicts or infringement issues.

Due Diligence

Before entering into an assignment of goodwill, it is crucial to conduct due diligence on the business and its intangible assets. This may involve reviewing financial records, customer contracts, licenses, and any legal agreements related to the business. Due diligence helps verify the value of the goodwill being transferred and mitigates the risk of undisclosed liabilities or legal issues.

Compliance with Laws and Regulations

Assigning goodwill may be subject to certain laws and regulations, depending on the jurisdiction and nature of the business. It is important to ensure compliance with applicable laws, such as antitrust regulations, consumer protection laws, and intellectual property laws. Seeking legal counsel can help navigate these complexities and ensure a smooth and legally compliant assignment process.

Importance of Due Diligence in Assigning Goodwill

Conducting due diligence is of utmost importance when assigning goodwill. It helps identify any potential risks or issues that could impact the value of the transferred assets. Some key reasons to conduct due diligence include:

1. Assessing Value : Due diligence allows for a thorough evaluation of the value of the goodwill being transferred. This helps both parties understand the potential benefits and risks associated with the assignment.

2. Identifying Liabilities : Through due diligence, any undisclosed liabilities or legal issues can be identified. This prevents the assignee from inheriting any unforeseen problems that could impact the business’s reputation or financial stability.

3. Mitigating Risks : Due diligence helps mitigate risks by ensuring that the assignor has the legal right to transfer the goodwill and that all necessary permissions and licenses are in place. It also helps identify any potential conflicts or infringements on intellectual property rights.

4. Negotiating Terms : The insights gained through due diligence can be used to negotiate the terms and conditions of the assignment. Thiscan include adjustments to the consideration exchanged, additional warranties or indemnities, or specific provisions to address any identified risks or concerns.

5. Building Trust : By conducting thorough due diligence, both parties demonstrate their commitment to transparency and integrity. This helps build trust and confidence in the assignment process, fostering a positive working relationship between the assignor and the assignee.

The assignment of goodwill through a deed is a significant step in transferring intangible assets from one party to another. It involves careful consideration of legal implications, conducting due diligence, and ensuring compliance with applicable laws and regulations. By understanding the concept of goodwill, the components of an assignment deed, and the importance of due diligence, businesses can navigate the assignment process successfully and protect their interests. It is always advisable to seek legal counsel to ensure a smooth and legally compliant assignment of goodwill.

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Ayodeji Akingbade is a Content writer /Copywriter with an insatiable thirst for knowledge. He loves researching topics such as real estate investing, technology trends, and personal finance before writing about them. He’s a realtor and real estate investor who connects with readers through real life experiences to bring fresh perspectives and novel ideas in all of his work. As he strives to keep his content up-to-date, he always looks for new ways to stay ahead and learn something new every day. He enjoys football and the traditional game of Monopoly with friends and family when he is not writing or reading.

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Patent registered designs and copyright can only be protected for a limited period. On the other hand trademark can be protected perpetually subject on conditions that is used and renewed periodically and the registered proprietor takes prompt action against the infringes. An unregistered trademark called a comman law trademark and can be kept alive and protected as long as it continued to be used and the owner of trademark takes appropriate action against the infringes by a criminal proceeding. The statues law of the tademarks sitll was governed by the Trade Merchandies Act 1958. The act has now been replaced by The Trademark Act 1999.

What is Trademark?

As per Statutory definition of trademark- Section 2(1)(zb) A trademark must be a mark which includes a device, brands, signatures, heading ticket, word, numeral, shape of good, packaging or colour combination or any combination thereof.

i) The mark must be capable of being represented graphically.

ii) The mark must be capable of distinguishing the goods or services of one from to others.

iii) It may inclued the shape of good, packaging or combination of colours.

iv) It issued or proposed to be in relation to the goods or services.

v) The use must be indicating the connection in the course of trade between the goods or services and the persons having the right as a proprietor to the use of the mark.

vi) A right to proprietor ship of a trademark may be acquired by registration under the act or by the use of the trademark in relation to a goods.

The right of proprietor ship acquired by the registration which requires no actual user but only an intention to use on the other mark. A right acquired by actual user in relation to a particular goods or service is a comman law right which is attached to the goodwill of the business concern.

##Trademark registry

An office called trademark registry has been registered for the purpose of registration of trademarks maintainence of the register and the matters incidental thereto. The head office of the registry is at Mumbai. It has branch office at Kolkata, Delhi, Chennai and Ahemdabad.

The Trademark registry is under the charge of registrar of trademarks, who is also the controller general of patent and desgins. He is assisted by a joint registrar, deputy registrar, assistant registrar, examiner of the trademarks and a competent of clerical staff.

The joint registrar or assistant registrar exercise the same powers as registrar in respect of any matter under the power delegated to them by the registrar.

Apart from registrar of tardemarks the registry of maintains index of:

a) Registered Trademarks,

b) Applications of trademarks,

c) The names of proprietors of the trademarks,

d) A name of registered user.

Branch office keeps a copy of the register and copies of indexes.

What are Registerable Marks?

The Trademark Act 1999, dose not define the catagories of registarable or the requisities for registration of a marks. It defines what marks are not registarable under two headings namely;

i) Absolute grounds for refusal &

ii) Relative grounds for refusal. The basic qualification for registration of marks is contained in the definition itself-

1) Capable of being represented graphically.

2) Capable of distinguishing the goods or services of one from to others.

Absolute Grounds For Refusal-

a) A marks which is void of any distinctive character that is no capable of distinguishing the goods or services of one from those of others.

b) Which indicate quality or descriptive character of the goods or services. c) Which have become customary in the current language or in a bona fide or establish of trade. This may relate generic names or marks common to the trade.

Relative Grounds For Refusal-

a) Mark which is identical or similar to an earlier trade mark and the repective goods or services or similar to.

b) A mark which is identical or similar to earliest trade mark but the goods or services are not similar.

The above catagories of tarde mark however be registered if the proprietor of an earlier trade mark contents or the marks is registerable u/s 12 by the virture of honest concurrent use.

What is Goodwill?

As per the Indian Trade Marks Act 1999, a trademark can be assignable with or without the goodwill of the business either in respect of all the goods or services or part thereof. According to Indian law the act recognize the right of the proprietor in trademark by which registered or unregistered trademark can be assignable and transmissible with or without goodwill subject to restriction laid down in section 40 if the Trade Marks Act,1999.

On the other hand, U,S legislation under section 10 of the trademark Act (Lanham Act) 1946, recognize only assignment of trademark with goodwill and assignment without goodwill is termed as an assignment in gross and invalid, therefore assignee acquires no rights in such transfer.

Scope of Assignment or transmission-

A registered trade mark can be assigned weather with or without the goodwill of the business concerned. Under the Act 1999, unregistered trademark is assignable and transmissible with or without goodwill of the business concerned. Where the assignment is without the goodwill of business, special conditions are imposed. Associated trademarks can be assigned only as a whole.

An assignment of a trade mark must be in writing. Sale or transfer of the goodwill of business will transfer to purchase or transferee the trade mark used in the business by implication even if the trade mark are not specifically mentioned in the deed of assignment. This is because a trade mark is part of the goodwill of business.

Assignment without Goodwill of Business?

In case of an assignment of a trade mark, wheather registered or unregistered, without the goodwill of business, the assignment will not take effect unless the assignee advertises the assignment in newspapers in accordance with the direction of the registrar, gives on application made for the purpose. The purpose of the advertisement is to give notice of the assignment to the public. It may be noted that a marks on the face of its indicative of one origin, if applied to goods of a different origin, would prima facie be deceptive. Advertisement may be necessary only where the marks has been in use. In case of unused trademarks, no public confusion would follow their assignment, advertisement, may not be necessary.

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DEED OF ASSIGNMENT OF A TRADE MARK (WITH GOODWILL)

DEED OF ASSIGNMENT OF A TRADE 

MARK (WITH GOODWILL) 

THIS DEED OF ASSIGNMENT made on this _______ day of __________ between _________________ M/s _______________________________, a Partnership firm having its principal office at _________________________ hereinafter referred to as "the Assignor" (which expression shall unless contrary to the context or meaning thereof include the partners for the time being or any change thereof, their successors, executors, administrators, legal representatives and assigns) of the one part. AND Sh. ____________________________ 

S/o ____________________________ 

r/o _____________________________________ hereinafter referred to as "the Assignee" (which expression shall unless contrary to the context or meaning thereof including his successors, executors, administrators, legal representatives and assigns) of the other part. WHEREAS 1. The Assignor being proprietor of certain Registered Trade Mark, the details whereof are given in schedule annexed hereto (hereinafter referred to as "the trade marks"). 2. The Assignee has asked the Assignor and the Assignor has consented to transfer the said trade marks to the Assignee with goodwill of the business in the goods under which the said trade marks have been registered on the terms /conditions hereinafter appearing. NOW THIS DEED WITNESSETH AS FOLLOWS: That per the said agreement and in consideration of the sum of Rs.__________(Rupees _________________________________ only) paid by the transferee to the assignor (which receipt is acknowledged by assignor) the assignor being proprietor of the said trade marks hereby transfers to the assignee the same trade marks more specifically stated in the schedule annexed hereto with the goodwill of the trade in the goods under which the said trade marks have been registered and TO HOLD the same unto the transferee. IN WITNESS WHERE OF, the parties hereunto have signed this __________ day of _________________. (The Schedule here in above referred to) The Assignor The Assignee 

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DEED OF ASSIGNMENT OF A TRADE MARK (WITHOUT GOODWILL)

DEED OF ASSIGNMENT OF A TRADE MARK

(WITHOUT GOODWILL)   [CD1]  

THIS DEED OF ASSIGNMENT made on this _______ day of __________ between __________________ M/s ________________________________, a Partnership firm with its principal office at __________ hereinafter referred to as "the Assignor" (which expression shall unless contrary to the context or meaning thereof include the partners for the time being or any alteration thereof, their successors, executors, administrators, legal representatives and assigns) of the one part.  

Sh. ________________________________ S/o ________________________________  

r/o __________________________________ hereinafter referred to as "the Assignee" (which expression shall unless contrary to the context or meaning thereof including his successors, executors, administrators, legal representatives and assigns) of the other part.  

WHEREAS  

1.                    The Assignor being proprietor in India of some Registered Trade Mark, as details given in schedule annexed hereto (hereinafter referred to as "the trade marks").

2.                    The Assignee has asked the assignor and assignor has consented to transfer the said trade marks to the Assignee but excluding the goodwill of the business in the goods under which the said trade marks have been registered on the terms/conditions hereinafter appearing.  

NOW THIS DEED WITNESSETH AS FOLLOWS:  

That per the said agreement and in consideration of the sum of Rs.___________ (Rupees

_____________________ only) paid by the assignee to the assignor (which receipt is acknowledged by assignor) the assignor being proprietor of the said trade marks hereby transfers to the assignee the said trade marks more specifically stated in the schedule annexed hereto and TO HOLD the same unto the assignee.  

IN WITNESS WHERE OF, the parties hereunto have signed this _______________ day of _____________.  

(The Schedule here in above referred to)  

The Assignor  

The Assignee  

  [CD1]

DEED OF ASSIGNMENT OF A TRADE MARK  

(WITHOUT GOODWILL)  

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Assignment of Trademark

GENERAL UNDERSTANDING:

As physical properties are transferred, the same way trademarks are also transferred. This transfer of trademark is called Assignment of trademark. In general terms, Assignment means transfer of title, rights, interest and benefits from one person to another person.

Thus, Assignment of trademark means transfer of Owner’s title, rights, interest and benefits to other person. The transferring party is called as “Assignor” and the receiving party is called as “Assignee”.

STATUTORY DEFINITION:

Section 2(1)(b) of the Trade Marks Act, 1999 “Assignment” means an assignment in writing by the act of the parties concerned;

WHO CAN ASSIGN A TRADEMARK:

As per section 37 of the Trade Marks Act, 1999, the person entered in the register of trademarks, as the proprietor of a trademark, shall have power to assign a trade mark and to give effectual receipt of for any consideration for such assignment.

ASSIGNABILITY OF REGISTERED OR UNREGISTERED TRADEMARK:-

As per section 38 of the Act, a registered trademark can be transferred with or without the Goodwill of the business concerned either in respect of all the goods or services in respect of which the said trademark is registered or of some of the goods or service.

Moreover, as per section 39 of the Act, an unregistered trademark may be assigned with or without the Goodwill of the business concerned.

  TYPES OF ASSIGNMENT:-

1. Assignment with Goodwill of Business: Where an assignor assigns to the assignee, the value, rights and entitlements also, as associated with a trademark with respect to the goods or services already in use by the assignor. After taking over the goodwill associated with the trademark, the assignee is free to use the trademark assigned to him for all goods or services including for the goods or services which were already in use by the Assignor. Such assignment is called assignment with Goodwill of Business.

For Example: Mr. X is the owner of a trademark “TM” who is already using the said trademark “TM” in relation to clothing and footwear. Mr.  X assign to Mr. Y the said trademark “TM” through an agreement (in writing) in relation to clothing and footwear alongwith the Goodwill associated with trademark “TM”.

In this case, Mr. X has also assigned to Mr. Y, the Goodwill associated with trademark “TM” for the business of clothing and footwear as well as for other goods or services. Therefore, Mr. Y is eligible to use the said trademark “TM”, for clothing and footwear including other goods or service dealt by Mr. Y.

2. Assignment without the Goodwill of Business: Where an assignor assigns to the assignee, the right and entitlements in a trademark with respect to the goods or services which are not in use by the assignor. In other words, where the assignor restricts the assignee with a condition that the assignee is not entitled to use the trademark assigned in relation to the goods or services already in use by the assignor. Such assignment is called assignment without the Goodwill of Business.

For Example: Mr. X is the owner of a trademark “TM” who is already using the said trademark “TM” in relation to clothing and footwear. Mr. X assign to Mr. Y the said trademark “TM” through an agreement (in writing) in relation to goods or services other than clothing and footwear without assigning the Goodwill associated with trademark “TM”.

In this case, Mr. X has not assigned to Mr. Y, the Goodwill associated with trademark “TM” for the business of clothing and footwear. Therefore, Mr. Y is not eligible to use the said trademark “TM”, for clothing and footwear. Thus, in case, Mr. Y wishes to use the said trademark “TM” in relation to other goods or services then he will be required to create separate Goodwill for trademark “TM” for such other goods or services dealt by him.

RESTRICTION ON ASSIGNMENT OF TRADEMARK:-

1. Parallel use Restriction: Where assignment results in creation of exclusive right in different persons, in relation to same or similar goods or services and the use of the trademark will be likely to deceive or cause confusion. Thus, multiple exclusive right in relation to same or similar goods or services, in different person is not allowed. This prevents the parallel use of a trademark by more than one person concerned in relation to same or similar goods or services. (Section-40)

2. Multiple Territorial use Restriction: Where the assignment results in creation of exclusive right, in different person in different parts of India, in relation to same or similar goods or services. Thus, assigning of scattered right in different parts of India is not allowed. (Section-41)  

PROCEDURE FOR ASSIGNMENT OF TRADEMARK:

REGISTRATION OF ASSIGNMENT OF TRADEMARK:

1. A person (subsequent proprietor) who becomes entitled by way of assignment, shall apply for registration of assignment before the Registrar of trademarks. (section 45)

2. After due satisfaction of the Registrar of trademarks, the Registrar shall enter the details of the assignee (subsequent proprietor) as the proprietor of the trademark assigned to him in respect of goods or services for which the assignment has been made. (section 45)

3. Where the validity of assignment is in dispute between the parties, the Registrar may refuse to register the assignment until the rights of the parties are determined by the competent court. (section 45)

4. Registrar of trademark shall dispose of the application for registration of assignment of trademark within a period of 3 (three) months from the date of receipt of application. (rule 76 of Trade Marks Rules, 2017 )

5. Registrar may, where there is reasonable doubt about the veracity of any statement or any document furnished, may call upon any person who has applied to be registered as proprietor of a registered trademark to furnish such proof or additional proof of title as the Registrar may think fit. (rule 77 of Trade Marks Rules, 2017)

6. Where in the opinion of the Registrar any document produced in proof of title of a person is not properly or sufficiently stamped, the Registrar shall impound and deal with it as per Chapter IV of the Indian Stamp Act, 1899 . (rule 78 of Trade Marks Rules, 2017)

7. Where the Registrar has allowed the registration of assignment, then there shall be entered in the register the particulars as follows(rule 84 of Trade Marks Rules, 2017):-

a) the name and address of the assignee;

b) the date of assignment;

c) where the assignment is in respect of any right in the trademark, a description of the right assigned;

d) the basis under which the assignment is made; and

e) the date on which the entry is made in the register.

RIGHT OF THE ASSIGNOR ON ASSIGNMENT OF TRADEMARK:

The assignor terminates to have his rights, title or any interest in the trademark, the moment assignment deed is executed in favour of the assignee, irrespective of the fact that the name of the assignee has not been updated in the record of the Registrar of trademarks.

In the matter of Classic Equipments Pvt. Ltd. Vs. Johnson Enterprises, 2009 (41) PTC 385 (Del), it was observed as follows:

“Once an Assignment Deed has executed, the Assignor ceases to have any right, title or interest in the property assigned. It is not open to the Assignor to cancel the assignment by means of communication”.

RIGHTS OF THE ASSIGNEE: WHEN ASSIGNMENT IS COMPLETE BUT REGISTRATION IS PENDING:

Though as per section 45 of the Act, it is mandated that the assignee shall apply before the Registrar of the trademarks to register his title. But this does not mean that recording of assignment of registered trademark asserts all rights or titles or interest in the assignee.

The reason behind this understanding are the opening words of section 45 of the Act, which says “where a person becomes entitled by assignment or transmission of a registered trademark, ……..”. Therefore, the first condition is entitlement of rights, title or interest by way of assignment or transmission of a registered trademark followed by registration of assignment of a registered trademark. Thus right in assignee does exist even before the registration of assignment.

In the matter of M/S. Modi Threads Limited vs M/S. Som Soot Gola Factory And…. on 4 th December, 1990: AIR 1992 Delhi 4, 1992 (22) DRJ 24 was observed as follows:

“It is true that the plaintiffs application for getting transferred the registered trade mark in its name in the office of the Registrar is still pending but that does not debar the plaintiff to protect the violation of the aforesaid trade mark at the hands of unscrupulous persons by filing an action in court of law for injunction. It is, prima facie, clear to me that during the interregnum period when the application of the plaintiff is kept pending for consideration by the Registrar of Trade Marks the dishonest persons cannot be allowed to make use of the said trade mark in order to get themselves illegally enriched earning upon the reputation built up qua that trade mark by the predecessor-in-interest of the plaintiff.”

The assignee of a trademark is also entitled to file a civil suit, even though the recording of assignment of registered trademark is pending before the registrar of trademarks. Moreover, section 45 does not confer any title over the trademark assigned. Instead the registration granted under section 45 is only proof of title of the trademark of assignee or the person who acquired it by way of assignment.

IMPORTANT KEY POINTS

√ Assignment is to be in writing;

√  Registered or unregistered both type of marks can be assigned;

√  Assignment can be with or without the goodwill of the business;

√  Event of assignment asserts the rights and title in an assignee not the registration thereof;

√  Registration of assignment is only prima facie proof of title of trademark;

√  Rights in an assignee exists even before registration of assignment of trademark.

Conclusion: –

Assignment of trademarks allows the Proprietor thereof to en-cash their intellect, efforts, time and money. It is equally important to register the assignment of trademark, since on registration the details of the assignee are updated in the register of trademark, this serves as a notice to public at large. Moreover, preparation of assignment agreements are also important as it involves rights, entitlements, interests and obligation including the commercial terms between the assignor and the assignee.

Disclaimer: The entire content of this document has been prepared as per the relevant provisions of the Act and rules made thereunder, applicable at the time of preparation. Though proper care has been taken to ensure accuracy, completeness and reliability of the information provided therein. The users and readers agree that the information provided in this document is not professional advice. Therefore, we assume no responsibility therefrom. Further, this write up shall not be considered as solicitation in any manner.

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What is a deed of assignment of goodwill

What is a deed of assignment of goodwill.

The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services. If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here. However, we have no access to or control over these cookies and we are not aware of any at present that do so.

We also use the cookie to personalise a user’s experience of the site for example to show information specific to a user’s region. To produce demographic feedback for our information providers who provide information free for your use.

We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. The business sale agreement contains such obligations but generally the parties prefer to set these out in a separate deed as well. FAQs relating to Assignment of a Goodwill What is an assignment? Information requested may include contact information such as name and delivery address , and demographic information such as postcode, age level.

If you do not want us to provide your name and email address you may opt out by clicking here. If Licensee, in the course of performing its services hereunder, acquires any goodwill or reputation in any of the Marks, all such goodwill or reputation will automatically vest in Licensor when and as, on an on-going basis, such acquisition of goodwill or reputation occurs, as well as at the expiration or termination of this Agreement, without any separate payment or other consideration of any kind to Licensee, and Licensee agrees to take all such actions necessary to effect such vesting.

Incorporation of Existing Business Assignment of Goodwill A significant part of what is transferred with a business is the goodwill. Mondaq and its affiliate sites do not sell or provide your details to third parties other than information providers. Your use of the Website constitutes your agreement to the following terms and conditions of use. The friend may contact Mondaq to request the removal of this information from our database. However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately remove it by selecting the ‘Log Off’ menu option as the last thing you do when you use the site.

We and our author organisations may only contact you via email or other means if you allow us to do so. In the same way users can amend their personal preferences to add or remove subject areas. The restrictions have to be reasonable or else they are void. IP addresses are not linked to personally identifiable information.

How to contact Mondaq You can contact us with comments or queries at enquiries mondaq. Contact information will be used to notify the winners and award prizes. In exchange for the consideration set forth in Section 2. Licensee agrees to and does hereby assign to Licensor or its licensor any and all goodwill Licensee may accrue through any use it may make or have made of the FAIRPOINT Mark after the Effective Date.

What does a purchaser of goodwill acquires? All such documents and related graphics are provided “as is” without warranty of any kind. Licensee, on behalf of itself, Licensees Subsidiaries and Licensees sublicensees, hereby assigns to Licensor any and all goodwill Licensee, Licensees Subsidiaries or Licensees sublicensees may have accrued through any use it may have made of the Licensed Marks through the Effective Date, and agrees to and does hereby assign to Licensor any and all goodwill Licensee, Licensees Subsidiaries or Licensees sublicensees may accrue through any use they may make or have made of the Licensed Marks after the Effective Date.

Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. We also collect information from our users at several different points on the websites: We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website or its affiliate sites for 12 months. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email.

Log Files We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. To allow you to personalize the Mondaq websites you are visiting. Protecting the goodwill in this way is important for the buyer otherwise they may find the seller setting up or becoming involved in a competing business nearby and enticing away customers.

To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq and its affiliate sites to your website.

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what is a deed of assignment of goodwill

A standard document for the assignment of goodwill in connection with the purchase of a business. This document has been adapted from Standard document, Assignment of intellectual property rights and goodwill (for use with asset purchase agreement) to provide a plain English, UK-style jurisdiction neutral starting point for local counsel to ...

If you are selling assets and goodwill of a business, will an asset purchase agreement suffice, or would you need an asset purchase agreement and a deed of assignment of goodwill? The precedent for the simple form asset purchase agreement assumes you need both.

Assigning goodwill through a deed has legal implications that should be carefully considered. Here are some key legal aspects to keep in mind: Contractual Obligations. The assignment of goodwill is a contractual agreement between the assignor and the assignee. Both parties are legally bound by the terms and conditions outlined in the assignment ...

This document has been adapted from Standard document, Assignment of intellectual property rights and goodwill (for use with asset purchase agreement) to provide a plain English, UK-style jurisdiction neutral starting point for local counsel to adapt to cross-border situations.

PLC Property has published a Deed of assignment of goodwill and an associated Drafting note, Deed of assignment of goodwill: drafting note. This Standard document is for use when dealing with property transactions where an assignment of goodwill is also required. The Drafting note explains the clauses in the Standard document in more detail.

The deed typically requires specific legal formalities, sometimes notarization, to ensure it is legally enforceable. To be legally effective a deed of assignment must contain: Title of the Document: It should clearly be labeled as a "Deed of Assignment" to identify the nature of the document.

Assignment of Goodwill. Licensee, on behalf of itself, Licensee's Subsidiaries and Licensee's sublicensees, hereby assigns to Licensor any and all goodwill Licensee, Licensee's Subsidiaries or Licensee's sublicensees may have accrued through any use it may have made of the Licensed Marks through the Effective Date, and agrees to and does hereby assign to Licensor any and all goodwill ...

ASSIGNMENT OF A GOODWILL BUSINESS. This Deed of Assignment being executed on this _____ day of _____. Between Sh. _____, S/o Sh. _____, R/o _____ (as named "the ...

deed or thing, whereby the said purchaser may be prevented from having and receiving the said premises or any part thereof, to and for his own use and benefit, or by means whereof the said purchaser

Assignment with Goodwill refers to the transfer of a trademark along with all the associated rights and values from one person to another. For instance, if 'X' assigns and transfers their trademark (♛) to 'Z' with all rights and values intact, 'Z' gains full rights to use the trademark for men's lifestyle products or any other ...

An agreement for the assignment of intellectual property rights and goodwill, as part of a wider asset sale of a business, to be used alongside a main asset purchase agreement (APA). Get full access to this document with a free trial

What Is A Deed of Assignment? A Deed of Assignment is a legal document that transfers or assigns the legal rights and obligations to another party. And it varies depending on your situation. For example, an assignment could work for simple things like intellectual property. When a graphic designer creates a logo for you, you might want to make ...

The Deed of Assignment is required to effect a transfer of property and to show the legal right to possess it. It is always a subject of debate whether Deed of Assignment is a contract; a Deed of Assignment is actually a contract where the owner (the "assignor") transfers ownership over certain property to another person (the "assignee ...

This Deed of Assignment (Asset Sales) is referred to at clause 6.2.1.1 of the assets sale agreements. It is required to assign the Books Debts (if applicable), Contracts, Goodwill, Intellectual Property and Seller's rights against third parties.

The Assignment of Goodwill refers to the transfer of the intangible asset of a business's reputation, customer base, and other intangible assets to another party. In British Columbia, this transfer is typically done through a written agreement and may involve the sale of a business or a change in ownership. The assignment of goodwill is an ...

A deed for use when a party to an agreement wishes to assign its rights and benefits under that agreement to another person. Deed of assignment | Practical Law Enter to open, tab to navigate, enter to select

A deed of assignment refers to a legal document that records the transfer of ownership of a real estate property from one party to another. It states that a specific piece of property will belong to the assignee and no longer belong to the assignor starting from a specified date. In order to be valid, a deed of assignment must contain certain ...

A deed for use when a party to an agreement wishes to assign its rights and benefits under that agreement to another person. Get full access to this document with a free trial Try free and see for yourself how Practical Law resources can improve productivity, efficiency and response times.

To kickstart the process, the original owner of the trademark ("Assignor") and the new owner of the trademark ("Assignee") should sign a deed of assignment, a legal instrument that transfer the trademark from the Assignor to the Assignee. One deed of assignment may include multiple trademarks. The deed of assignment contains the terms and condition to transfer the trademark.

Assignment with the Goodwill of Business: Assignment without the Goodwill of Business: Trademark Pending for Registration; Relevant Form: TM-M. Statutory Fees: Rs. 1,000/- (offline filing) or. ... "Once an Assignment Deed has executed, the Assignor ceases to have any right, title or interest in the property assigned. ...

A Deed of Assignment of Trademark is a document through which the registered proprietor of a trademark transfers his/her/its rights, title and interest in the trademark to a third party. ... where the goodwill of the business is not being assigned. Deed of Assignment of Trademark (Absolute without Goodwill) quantity. Buy now.

What Is A Deed of Assignment (Contract Assignment)? A Deed of Assignment is a legal document that transfers or assigns the legal rights and obligations to another party. And it varies depending on your situation. For example, an assignment could work for simple things like intellectual property. When a graphic designer creates a logo for you ...

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Deed of assignment of trademark (absolute without goodwill).

KShs  3,300.00

A Deed of Assignment of Trademark is a document through which the registered proprietor of a trademark transfers his/her/its rights, title and interest in the trademark to a third party. This gives the third party the right to use the trademark of the owner.

Once the Deed of Assignment is done it is required to be registered with the Registrar of Trademarks.

The difference between an assignment and a trademark is that a license allows the licensor to retain their rights and interests in their IP while an assignment transfer all of the assignor’s rights and interest to the assignee.

This Deed is applicable in the following scenarios:

• where the assignment is absolute; and
• where the goodwill of the business is not being assigned.

Additional information

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